Abstract:
This chapter wrestles with the interface between Intellectual Property Rights (IPRs),
competition law and access to medicines. It emphasizes the important role that
competition law may play, in addition to the internal IP flexibilities, in order to
foster access and dissemination of medical products. Of course, competition law
could also be considered as a flexibility within the TRIPS agreement. In our analysis,
we consider competition law separately given its role in creating competitive
markets within which IP products are commercialized. Relying on the recent case
law in the EU, in Italy and in South Africa on the application of competition law in
the pharmaceutical sector, with a focus on the prohibition of excessive pricing of
pharmaceuticals, this paper argues that TRIPS flexibilities are an important regulatory
tool to control prices and to foster access to medicines. However, in certain
circumstances, IP flexibilities are operational only within a competitive market that
is guaranteed by a functioning competition law.
